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ATTENDANCE ALLOWANCE
I have a client who has Emphysema , aged 68 , the condition is mild to moderate. She was awarded HRAA for the last two years , which admittedly came as a surprise at the time, but when we submitted a review she was no longer entitled to AA. We appealed but still not entitled. I think the first two years award was a mistake in view of her condition and led to an expectation of continuing the enetitlement especially as she has got a bit worse in the last two years.She still manages the condition quite well.
Someone has brought to my attention that we may be able to appeal against the Tribunal’s decision in that they have erred in law in that the benefit if awarded in error has to be maintained. I apologise if I am not explaining this very well. I am not sure how you prove the original award was made in error , but I thought it worth an enquiry to see if there is anything I can do to get this client’s AA back. Thank you.
On a renewal claim the burden of proof is on the claimant to show that he qualifies. If an award is still running the DWP can bring it to an end prematurely if it can prove that the award was made in ignorance of or on a mistake as to a material fact.
R(DLA)1/06 goes into need for grounds for supersession:
http://www.osscsc.gov.uk/judgmentfiles/j1768/R(DLA) 1_06 bv.doc
Unfortunately it sounds like either a renewal of a time limited award (because why would anyone seek to revise a HRAA award?), or they were acting on information received - in which case I don’t think there’s much you can do along that track, but ask for a statement of reasons anyway and see if any other error in law is apparent… tribunals can be a bit lazy if they think they have an open and shut case so the reasons may not be adequate!
Bear in mind if so open and shut that no tribunal would award then you may not be doing the client any favours in getting the tribunal decision set aside…
Nothing to stop a new claim, of course.
“Someone has brought to my attention that we may be able to appeal against the Tribunal’s decision in that they have erred in law in that the benefit if awarded in error has to be maintained”
I’m wondering if the person who said this has got mixed up with the rules about recoverability of benefit overpayments? From your description, it sounds like the DWP stopped paying the AA but they are not asking the claimant to pay back any AA which has previously been paid to them, so this is not an issue.
If AA was previously awarded in error, and evidence now suggests the claimant doesn’t meet the criteria, there is no obligation on the DWP to continue paying it.
Sorry about earlier link - rightsnet can’t cope with gaps on links so please copy address and paste straight into browser for link to decision.
I think that there WAS a case where the DWP made a decision that they later tried to revise because they claimed it was in ignorance of or mistake as to a material fact, but turned out there were no facts the DWP were ignorant of or mistaken as to when original decision was made…
I’m pretty sure that it wasn’t left that an award could be indefinite on that basis, and suspect as noted above that it was an appeal linked to overpayment, but sorry -can’t find the decision
As posted above - I don’t think it will help. When an award is for a limited time a renewal is treated as a fresh claim and there is no compulsion on the DWP to prove grounds for supersession unless they choose to terminate the award before the end date.
Thankyou all for your replies. It was a renewal following the end of the 2 year award , it’s just a mystery as to why she was entitled to Higher Rate for those 2 years , gets a bit worse and then is not entitled to it at all. I looked at both claim forms and there was not much difference at all in the responses to the questions. Decision Making will forever remain a mystery. Thanks again.
Decision Making will forever remain a mystery. Thanks again.
It’s not a mystery it’s just inconsistent and unreliable.
The DMs are too busy to give claims proper consideration a lot of the time so it’s often a lottery. A lot of Tribunals won’t give an awarding decision any creedence unless it’s been made by Tribunal due to this.
I once saw an EMP report that had gone to massive lengths to argue that a claimant wasn’t entitled to benefit; he’d written so much that the DM must have flicked the report, thought “gosh that’s detailed; she must really need the money” and made an indefinite award of high rate both (DLA).
That’s the level of scrutiny you can expect claims will be given…